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1. Can I require my staff to return to the office?
As a general rule, employers can require staff to return to the office as long as it is a legitimate and reasonable request. It would be illegal and unreasonable to require staff to return to the office if this is against state foreclosure rules and if the employer has failed to take adequate steps to provide a safe working environment to protect employees. COVID-19 employees.
In addition, some employees have the right to request flexible working arrangements, which may include working from home. This includes employees with disabilities or over the age of 55, as they may be disproportionately affected by COVID-19. Employers can only refuse this request on reasonable business grounds.
2. Can I require all staff to be fully immunized before returning to work?
Employers can only require vaccination of their employees if:
a) A specific law requires that employees of a certain industry be vaccinated (such as a public health order of a state or territory).
Click here to see the full list of workers who need to be vaccinated.
b) A company agreement, other registered agreement or employment contract allows the requirement.
For example, an employment contract or applicable company agreement may contain a “Covid-19 vaccination clause” which states that the employee must be vaccinated against COVID-19.
vs) The instruction would be legal and reasonable (this is assessed on a case-by-case basis).
For an employer’s directive to be vaccinated against COVID-19 to be legal and reasonable, it must comply with any employment contract, company agreement or other registered agreement as well as all applicable Commonwealth laws. , state or territory (for example, anti-discrimination laws).
Several factors are taken into account in determining whether a directive to an employee is legal and reasonable, including:
- the nature of each workplace;
- the extent of community transmission of COVID-19 where the instruction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
- the effectiveness of vaccines in reducing the risk of transmission or serious disease, including the Delta variant;
- occupational health and safety obligations;
- the situation of each employee, including their duties and the risks associated with their work;
- whether employees have a legitimate reason for not getting vaccinated; and
- vaccine availability.
3. When does a warrant to get vaccinated violate anti-discrimination laws?
In imposing a general mandate on employees to be vaccinated against COVID-19, employers must be careful not to engage in indirect discrimination. Indirect unlawful discrimination may arise when a group of people are less able to comply with the requirement (for example, for medical reasons or religious beliefs).
Employers should ensure that any implemented COVID-19 vaccination policy contains appropriate exceptions for people with medical or other contraindications to mitigate the risk of discrimination claims.
Note: Each Australian jurisdiction has its own discrimination law (s) and they are not uniform. Differences between Commonwealth, State and Territory laws will affect what will be considered unlawful discrimination and what exceptions may exist.
4. Can I ask my staff to tell me if they have been or intend to be vaccinated? Can I ask them for proof?
It is not illegal to ask if an employee is / is not vaccinated. However, information about an employee’s immunization status is sensitive under privacy law and employers should ensure that they comply with confidentiality obligations when collecting this information.
An employer should only ask an employee to provide information about their immunization status when required / permitted by law and when the employer has legally mandated workplace vaccinations. In such circumstances, employers may require an employee to disclose their immunization status and require an employee to provide proof.
5. Can I fire a staff member if they refuse to be vaccinated?
If an employee refuses to comply with an employer’s legal and reasonable instruction to be vaccinated against COVID-19 without a legitimate reason, the employee may be subject to disciplinary action, up to and including termination.
An employee may have a valid reason due to medical and health advice not to be vaccinated. Other legitimate reasons for refusing to be vaccinated may also result from the religious beliefs of the employee. Employers should seek appropriate evidence of the employee’s refusal to be vaccinated (for example, a medical report from an attending physician).
An employer’s decision to terminate an unvaccinated employee will be valid only to the extent that the initial instruction regarding the employee to be vaccinated was legal and reasonable. As noted in point 2 above, several factors are taken into account in determining whether an instruction is legal and reasonable. Before making a decision to terminate an employee, an employer should ensure that they comply with any disciplinary procedures and consultation requirements in order to mitigate a wrongful termination complaint.
6. Is it discrimination to fire an employee because he is not vaccinated?
Disability discrimination laws require employers to make “reasonable adjustments†for people with disabilities. Reasonable adjustments that can be made will depend on the facts and circumstances surrounding the employee’s role. An example of a reasonable adjustment that could be made when an employee has a medical reason for not being vaccinated may be to require the employee to undergo periodic testing or some other control measure such as wearing a mask. .
However, there are circumstances in which an employer is not required to take into account an employee’s legitimate ground for refusal where this would result in unjustifiable hardship on the employer, for example, the employer in nursing homes for elderly people where the risk of allowing unvaccinated employees to the site is too great. .
In addition, it will not be discrimination to fire an employee when vaccination is an “inherent requirement†of his role. This would apply in cases where a public health order / directive requires certain groups of workers to be vaccinated.
7. Can I prohibit contractors, clients or other participants from entering my business premises if they are not vaccinated?
Usually, the owner or tenant of a premises can restrict access to its premises or impose entry conditions on those seeking to access these premises. However, in choosing to allow access or deny entry to anyone, companies must ensure that they are not breaking any anti-discrimination laws.
8. Is it discrimination if I refuse entry to someone because they are not vaccinated?
Under disability discrimination laws, it is illegal to discriminate against a person on the basis of their disability by denying that person access or use of premises that the public is permitted to use.
There is an argument that if a person who cannot be vaccinated against COVID-19 for medical reasons is refused entry to the premises, they would be discriminated against because of their disability (this does not apply where ‘a person simply chooses not to be vaccinated against COVID-19 without medical exemption).
Where a person holds a valid medical exemption in the form currently required by the various jurisdictions and is denied access to the premises, they could argue that they have been discriminated against because of their health / condition. handicap.
9. Can I ask a candidate if they are vaccinated during an interview?
If an employer can establish that being vaccinated is an inherent requirement of the job and the employer can contractually require that a potential employee be vaccinated against COVID-19, they can inquire about the vaccination status of the potential employee / look for proof or proof of it.
Employers should be mindful of the principles of discrimination set out below to ensure that any decision not to employ an unvaccinated candidate does not fuel a complaint of discrimination.
10. Is it discrimination if I refuse to employ someone because they are not vaccinated?
In cases where job adjustments to accommodate the unvaccinated employee would cause undue hardship to the employer, this would not be considered discrimination and a decision could be made not to hire someone because they is not vaccinated. Moreover, it would also not be discrimination when vaccination is an inherent requirement of the role (see question 6 above) or has been mandated in this workplace by the government. Such circumstances would constitute a valid defense against any allegation of unlawful discrimination.
11. If I oblige the vaccinations, will I be liable to the employee if they suffer from any illness or medical problems as a result of the vaccination?
The federal government recently introduced the COVID-19 Vaccination Claims Program for large claims. This means that employers will not be liable if an employee suffers from medical problems due to the vaccine at a cost greater than $ 5,000.
For claims under $ 5,000, employers can be held liable for unwanted side effects if they force the vaccine in the workplace. Under workers’ compensation laws, an employer can be held liable for a “personal injury” arising from the employment. However, “injury†usually does not include mild, temporary symptoms like headache, fever, and chills as common side effects of the vaccine. Therefore, the extent of an employer’s liability will depend on the case.
12. If an employee contracts COVID-19 at work, am I liable to them for the damages they suffer?
Workers compensation
Employees will be entitled to workers’ compensation if they contract COVID-19 while engaging in activities induced or encouraged by their employer (for example, travel). Therefore, employers should be careful when asking employees to enter high-risk COVID-19 settings.
Health and security at work
If an employee contracts COVID-19 as a result of an employer’s failure to provide a safe work environment, the employer may be held liable for violations of occupational health and safety laws. Such liability can arise in circumstances where an employer disregards public health advice.
13. Where can I get help?
The websites of the Fair Labor Ombudsman and state / territory governments are frequently updated with information to further assist employees.
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